Families Lose in Child Support Case

The Supreme Court’s Recent Decision in Turner v. Rogers Suggests More Work Ahead

By Joy Moses
Posted on June 22, 2011, 9:00 am

There were no winners in the Supreme Court’s decision yesterday in Turner v. Rogers. The Court decided that the appointment of an attorney is not required when parents, who are typically fathers, face jail time for not paying child support. This decision means more fathers will likely end up in jail. The Court required some lesser protections that could help fathers avoid jail time, but more action is needed from outside the courts to help these families.

Fathers obviously lose since their freedom is on the line when they’re unable to launch the best possible defense. For many, there is a legitimate defense that they are simply too poor to pay. Half of all child support debtors are the poorest men in society, and 70 percent of past due payments are owed by those making $10,000 or less. Some men are more at risk than others because they have the highest unemployment rates, including those who are black (17.5 percent), Latino (10.1 percent), and/or have limited education and skills (13.7 percent).

But mothers lose, too. The Court says men can’t be guaranteed attorneys because women may not have them. This is certainly fair—unless you focus on the fact that women may not have attorneys. Equalizing this disadvantage is better than some other options. But what if both parents had the help they needed?

Self-representation is becoming commonplace. It is not always easy, however. Providers still have much to learn about how to develop the most useful nonlawyer supports (courthouse advisers, pamphlets, information sessions) and more work is ahead in replicating best practices. And some will still need a lawyer due to their own personal challenges or the complications of their cases. With the latter, the Court left room for the possibility that lower courts, and eventually the Supreme Court, could require the appointment of counsel in complicated cases involving potential jail time.

Children lose as well. Court and child support systems that are meant to serve their best interests will continue to fail far too many, reaching some issues beyond those that were before the Court. When their dads refuse to pay, punishing them with jail time is helpful. But what about the children with fathers who can’t afford to pay, have difficulty representing themselves, and end up in jail? For them there’s now zero chance that their dad will work and pay support, and it’s much harder to see him behind bars. Importantly, an opportunity is lost to help the child through more family-friendly child support policies that increase the ability to collect via help with employment and fostering father-child connections.

To be fair, the Supreme Court decision did include some important protections the Obama administration suggested in its brief to the Court. The Court required safeguards that are alternatives to an appointed attorney such as telling men that they can avoid jail if they can’t afford to pay and providing them with an opportunity to demonstrate that they can’t pay.

Certainly these suggestions will be helpful to many. But more is needed from outside the courts. Reforming federal child support policy to include more positive supports aimed at employment and family connection would help increase child support payments. Such activity has been stalled in Congress. Proper investments in legal services for the poor also would allow more mothers and fathers who need attorneys to get help. A recent $15.75 million cut to legal services is of no help. Finally, the Court’s decision does not prevent states and jurisdictions from passing their own laws requiring legal help for parents in cases like these. Hopefully more will do so.

In short, the issues raised in yesterday’s decision demand continued attention from outside the Supreme Court. The well-being of children and families—and at the times the interests of justice—demand it.